' LEHRASAP KHAN, J.-- Muhammad Afzal (25), Muhammad Ashraf (30) and Bahawal (60), have been convicted by a learned Additional Sessions Judge, Gujranwala, vide his judgment, dated 11-1- 1982, under section 302/34, P.P.C. For the murder of Nasir Ahmad and under section 307/34, P.P.C.
For murderous assault on Ghulam Rasul P.W. They have been sentenced to imprisonment for life and a fine of Rs,10,000 each or in default three years' R.I. Under section 302/34, P.P.C. While under section 307/34, P.P.C. They have been sentenced to one year's R.I. Each and a fine of Rs,200 or in default two months, R.I. Each. It has been directed that the fine, if recovered, shall be paid to the heirs of the deceased as compensation. The substantive sentences have been ordered to run consecutively. Vide same judgment Muhammad Akram, a co-accused has been acquitted.
2. The aforementioned convicts have challenged their convictions and sentences through the present appeal (Criminal Appeal No,86 of 1982), while the State has filed Criminal Revision No,598 of 1982, for enhancement of sentence of the convicts to death. Vide this Court's order dated 1-2- 1983, the revision has been admitted to regular hearing as against Muhammad Afzal but it has been dismissed in limine as against Bahawal and Muhammad Ashraf. The appeal as also the revision against Muhammad Afzal shall be disposed of by this single judgment.
3. The occurrence took place at 5-30 p.m. On 4-5-1980, in the street opposite to the house of Bahawal appellant in the area of village Mohlanke, at a distance of 3.44 K.M. From Police Station Ahmad Nagar.
' Statement Exh.P.F. Of Nasir Ahmad deceased was recorded while he was alive at 10-15 p.m. On 4- 5-1980, in the Civil Hospital, Gujranwala by Muhammad Siddique A.S.I. (P.W.10), who had gone to the hospital after havir1g received the information about the occurrence. Formal F.I.R. Exh.P.F/1 was recorded on the same day at 11-45 p.m. At the police station by Muhammad Younus, M.H.C. (P.W.5).
The death of Nasir Ahmad took place at 12-10 a.m. After midnight on 5-5-1980.
4. Regarding motive it has been stated that a day prior to the occurrence i.e, on 3-5-1980, Shahbaz Ahmad son of Bahawal Khan appellant gave shoe beating to Nisar Ahmad son of Bashir Ahmad, a nephew of Nasir Ahmad deceased and on the day of occurrence, the deceased had gone to Bahawal at 5-00 p.m. To lodge protest to Bahawal. Hence the occurrence.
5. As for the main occurrence, it has been stated that after lodging protest to Bahawal about the conduct of his son Shahbaz Ahmad, the deceased sat at the shop of Muhammad Rafiq Teli, where he was approached by one Asghar Ali who requested him to get his chain (Sangle) returned from Nazar Muhammad son of Hussain Khan. Thereafter the deceased and Asghar Ali aforesaid started for the house of Nazar Muhammad, when at about 5-30 p.m. They reached in front of the Haveli of Bahawal appellant, Bahawal armed with Sota, Muhammad Ashraf armed with Sota, Muhammad Afzal armed with carbine and Muhammad Akram (acquitted accused) armed with Sota, came out from the Haveli of Bahawal and opened attack on the deceased. Muhammad Afzal fired with carbine at the deceased hitting him on his left thigh above the knee, Bahawal dealt a Sota blow on his back, Muhammad Ashraf dealt a Sota blow on his left arm and Muhammad Akram dealt a Sota blow on his right eye-brow. On the alarm raised by the deceased, his father Ghulam Rasul, Asghar All son of Sardar Khan and Amanullah son of Nazar Muhammad, were attracted to the place of occurrence. Ghulam Rasul, the father of the deceased, proceeded further to rescue his son and he was dealt a Sota blow on his right cheek by Bahawal. Thereafter the assailants ran back to their Haveli.
6. Crime empty P.1 was recovered from the spot on 5-5-1980 and it was secured, vide memo.
Exh.P.D., which has been attested by Muhammad Riaz, P.W.4, Muhammad Sharif (not produced) and Muhammad Siddique, A.S.I. (P.W.10).
7. The accused were arrested on 9-5-1980 by Tanvir Ahmad, S.I. (P.W.11). On 10-5-1980, Muhammad Afzal appellant led to the recovery of carbine P.7 vide memo. Exh.P.J., which has been attested by Pir Muhammad P.W.8, Muhammad Nawaz (not produced) and Tanvir Ahmad, S.I. (P.W.11).
' The crime empty P.1 and the carbine P.7, were despatched to the Forensic Science Laboratory together on 18-5-1980. The result, as per report of the Forensic Science Laboratory Exh.P.Q. Is in positive.
' Sota P.6 and Sota P.7 were recovered on 10-5-1980, vide memo. Exhs. P.G. And P.H., respectively from Bahawal and Muhammad Ashraf appellants. These two memos. Have been attested by Pir Muhammad, P.W.8 and Tanvir Ahmad S.I. (P.W.11). Both the Sotas were not blood-stained at the time of recovery.
8. Dr. Gulzar Ahmad, Medical Officer, D.H.Q. Hospital, Gujranwala examined Nasir Ahmad deceased while he was alive on 4-5-1980 at 10-11 p.m. And noticed a lacerated wound, another multiple lacerated wound in area of 4 c.m. x 2 c.m. At inner side of left thigh, four abrasions and six contusions on the person of Nasir Ahmad aforesaid vide medico-legal report Exh.P.L. Injury No,3 was opined to be grievous having been caused with a fire-arm while the rest were said to have been caused with blunt weapon and were declared simple.
' On the same day at 10-30 p.m., this witness medically examined Ghulam Rasul P.W.7, the father of Nasir Ahmad deceased, and notice a lacerated wound 2 c.m. x 1 c.m. x 1 c.m. At the right cheek. The injury was opined as simple having been sustained with blunt weapon. The medico-legal report in respect of Ghulam Rasul is Exh.P.K.
9. P.W.1 Dr. Nazir Ahmad, conducted autopsy on the dead body of Nasir Ahmad deceased on 5-5- 1980 at 12-30 p.m. He also noticed the aforementioned injuries on the person of the deceased as were observed by Dr. Gulzar Ahmad. He opined that the death occurred due to shock and haemorrhage resulting from injury No,3 and that this injury was sufficient to cause death in the ordinary course of nature. In his cross-examination he disclosed that injury No,3 was not on the vital part of the body but the deceased died on account of bleeding shock as the injury had resulted into perforation of left leg blood vessel.
10. At the trial the prosecution in all examined 11 witnesses including the aforementioned two Medical Officers. Ch. Muhammad Ibrahim P.W.2 is a draftsman. He prepared the site plan Exh.P.B.
And P.B/1. Muhammad Riaz P.W.4 testified about the recovery of crime empty. Pir Muhammad, P.W.8 disclosed about the recoveries of carbine and Sotas from the appellants. Ghulam Rasul P.W.7 furnished the ocular account of the prosecution version. Muhammad Siddique A.S.I. P.W.10 recorded the statement of the deceased while he was alive in the D.H.Q. Hospital at Gujranwala and conducted preliminary investigation, while Tanvir Ahmad, S.I. (P.W.11) completed the investigation and submitted the challan. The rest are formal witnesses.
11. The prosecution case against the appellants is based on the statement Exh.P.F. Of Nasir Ahmad deceased, which has been treated as dying declaration and testimony of Ghulam Rasul P.W.7, the injured eye-witness. Corroboration has been sought from the recoveries.
12. The plea of the appellants was that of total denial and false implication due to enmity. They further claimed that they had been falsely substituted for Amanullah. In defence the appellants examined M.A.A. Nomani, Handwriting Expert as D.W.1 to say that the signature of Nasir Ahmad deceased on the statement Exh.P.F. Did not tally with his signature on the medico-legal report. His opinion, however, has not been accepted as correct by the learned trial Court.
13. The learned counsel for the State while supporting the trial Court's judgment has argued that the dying declaration of the deceased Exh.P.F. Supported by the eye-witness account furnished by Ghulam Rasul, the injured P.W., is sufficient to warrant conviction and that Muhammad Afzal appellant who caused the fatal fire arm injury to the deceased should have been sentenced to normal penalty of death and there was no justification to award alternate lesser penalty of imprisonment for life in his case.
14. The learned counsel for the appellants, however, has contended that the dying declaration Exh.P.F. Is a fake document. Ghulam Rasul is an interested witness, the recoveries are of no significance, because the crime empty and the carbine were deposited together at the office of the Forensic Science Laboratory and the Sotas recovered from Bahawal and Muhammad Ashraf were not blood-stained.
15. We have considered and analysed the contentions raised on behalf of the State as also for the appellants, in the light of the evidence available on the records of the case. We have noticed that statement Exh.P.F. Of Nasir Ahmad deceased was recorded while he was alive and after he was duly certified by Dr. Gulzar Ahmad, P.W.9 that he was fit to make statement. The certificate is Exh.P.M. And Dr. Gulzar Ahmad has testified that statement Exh.P.F. Of the deceased was recorded in his presence and the deceased remained in his senses throughout the recording of his statement.
The doctor has also appended his signature Exh.P.A/1 on the statement Exh.P.F.
16. We have also compared the signature of the deceased on the statement Exh.P.F. With his admitted signature on the medico-legal report. We find that the word 'Nasir' in case of both the signature is identical. In the above circumstances the learned trial Court was justified in brushing aside the opinion of the Handwriting Expert and in holding the dying declaration Exh.P.F. As genuine statement.
17 Ghulam Rasul P.W.7, no doubt is the father of the deceased, but he is an injured P.W. And his injury furnishes judicial certainty about his presence at the time of occurrence. His testimony supports the contents of the dying declaration. It has, therefore, been established that the appellants in furtherance of their common intention caused injuries to the deceased as also to his father Ghulam Rasul. One of these injuries which resulted into death of the deceased was caused with a fire-arm namely carbine by Muhammad Afzal appellant. This injury has been caused at the thigh above knee resulting perforation of left leg blood vessel causing bleeding on account of which he expired. The other two appellants caused simple injuries with Sotas. If they intended to cause the death of the deceased, Muhammad Afzal would in all probability have repeated the fire but he did not do so. Alternatively in such an eventuality he would have fired causing injury on some vital parts of the body of the deceased. It has, however, not been done so. The appellants, therefore, cannot be burdened with the intention to kill the deceased. Even it cannot be said that while causing injuries they had the knowledge that their act of causing injuries to the deceased would in all probability result into the death of the deceased. Laymen like Muhammad Afzal and other appellants are not expected to know the locale of the main blood vessel i.e, femoral artery, in the human body. There is no evidence of any previous enmity between the parties. The motive as stated above is only that the deceased had gone to the house of Bahawal to lodge protest that his son had unreasonably given shoe beating to the nephew of the deceased. It, therefore, appears to be a sudden affairs. In Muhammad Feroze v. Muhammad Arif and another 1976 SCMR 497, it was observed: "The incident appears to be a sudden affair as the deceased had objected to the abuse to the entire Kashmiri community by the respondent. Only one blow was given by the respondent upon the thigh of the deceased, which is not a vital part of the body. The blow happened, however to cut the femoral artery and veins. The learned Judges of the High Court have rightly observed that the respondent as a layman could not be saddled with the knowledge of the location of the different arteries and ' veins in the human body, and in support of their view they have relied upon the case of Public Prosecutor v. Ramaswa mi Nadar AIR 1940 Mad.
745. In the case under report it was observed that an ordinary person was not presumed to know the precise location of the arteries in the human limbs. If a stab with a knife or a dagger aimed at an arm or a leg severs any artery and the injured man dies as a result, it might be quite reasonable to argue that the offence was not one of culpable homicide and that the assailant could only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon.
' We are in agreement with the view taken by the learned Judges of the High Court. From the nature of the injury caused upon the deceased it is legitimate to infer that it was a hurt which endangered the life of the victim. As a matter of fact the deceased died the same night as a result of shock and excessive bleeding from the injury.
' In our opinion, therefore, the respondent has been rightly convicted and sentenced under section 326 of the Pakistan Penal Code."
17. In the circumstances of the present case we are of the considered view that the appellants cannot in law be burdened with the intention or even knowledge to kill the deceased. They are, therefore, liable for causing grievous hurt with a dangerous weapon to the deceased. We D accordingly alter their conviction from section 302/34, P.P.C. To section 326/34, P.P.C. So far as the injuries to Nasir Ahmad deceased are concerned. They have, however, acted recklessly in causing the death of the deceased. We, therefore, award sentence of ten years' R.I. Each to them under section 326/34, P.P.C. And a fine of Rs,10,000 each as imposed by the learned trial Court or in default three years' R.I.
For causing simple injury to Ghulam Rasul, P.W.7 with a blunt weapon, the conviction of the appellants is altered from section 307/34, P.P.C. To section 323/34, P.P.C. And for the said offence they are sentenced to one year's R.I. Each and a fine of Rs,200 each or in default two months' R.I.
Each.
18. The substantive sentences in case of the appellants shall run concurrently and they shall also be extended the benefit available to them under section 382-B, Cr.P.C. In regard to the period of detention suffered by them in this case. The fine if realised shall be paid to the heirs of the deceased as compensation. The revision petition in the circumstances is dismissed.